Allowed

Union of India v. P. Rajasekhar

Telangana HC30 Dec 2021WP/18594/2021

Case brief

AI extract

What is this about?

The High Court quashed the Central Administrative Tribunal's order directing promotion of a Railways employee facing criminal proceedings. The Court held that pending criminal cases justify deferring promotion, especially in sensitive sectors like Railways, overruling the Tribunal's reliance on Janakiraman.

What did the court decide?

Tribunal order dated 09/11/2020 set aside; Writ Petition allowed.

Union of India Vs P. Rajasekhar — Pension and Retirement Benefits | Telangana HC (2021)

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HIGH COURT FOR THE STATE OF TELANGANA (Special Original Jurisdiction)

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THURSDAY,THE THIRTIETH DAY OF DECEMBER TWO THOUSAND AND TWENTY ONE

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PRESENT

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THE HONOURABLE SRI JUSTICE P NAVEEN RAO AND

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THE HONOURABLE SMT JUSTICE P.SREE SUDHA

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WRIT PETITION NO: 18594 OF 2021

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Between:

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Union of lndia, Rep by its Ex Officio Principal Secetary, IVlinistry of Railways Rail Bhavan Raisina Road New Delhi 1 10001 .

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The Director (Estt) And (GP), Railway Board, lvlinistry of Railways, Rail Bhavan, Raisina Road, New Delhi - I

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The General l,4anager, South Central Railway, Head Quaders Office 3rd Floor, Rail Nilayam, Secunderabad.

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The General l,4anager (P), Head Quarters Office, 4th Floor, Rail Nilayam Secunderabad

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...PETITIONERS

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AND

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P. Rajasekhar, S/o. Late P. Suguna Rao, Aged about 55 Years, Occ- Divisional Signal and Telecom Engineer, South Central Railway, Rail Nilayam 7th Floor, Secunderabad R/o. Railway Quarters No. 955/4, South Lallaguda, tvlettuguda Secunderabad.

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Respondent/l"tApplicant in OA No 112812018

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2, M. Nagaiah, S/o, Not Known, Occ- Divisional Signal and Telecom Engineer ( Projects ), O/o. Deputy Chief Signal and Telecom Engineer ( Projects ) Microwave Centre, Sough Central Railway, Secunderabad - 500025

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...RESPONDENT/Sth Respondent in OA No'1 1 281201 8

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Petition under Article 226 of the Constitution of lndia praying that in the circumstances stated rn the affidavit filed therewith, the High Court may be pleased toto issue an appropriate writ, order or direction more^particularly one in the nature of WRIT OF CERTIORARI, or any other appropriate Writ order or direction calling for the records pertaining to order dated 09/1 1/2020 passed in OA No. 02110112812018 and lr/A No. 883/2019 on the file of Central Administrative Tribunal Hyderabad Bench, Hyderabad and quash the same, as illegal arbitrary and unconstitutional and to pass

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lA NO: 3 OF 2021

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Petition under Section 151 CPC^praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be^pleased to direct the Respondent to reserve one JAG post for granting promotion and for regular posting to the petitioner. pending disposal of the main Writ petition

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IA NO: 1 OF 2021

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Petition under Section^'l 51 CPC praying that in the circumstances statedⁱⁿ the affidavit filed in support of the^petition, the High Court may be^pleased to suspend the operation of the orders dated 0911112020^passed in OA No.021/01 12812018 And N.4A no. 883/2019 on the file of Central Administrative

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TribunalHyderabadBench,HyderabadpendingdisposaloftheaboveWritPetition and pass

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IA NO :2 OF 2021

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PetitionunderSectionlslCPCprayingthatinthecircumstancesstatedin the affidavit^{filed ln support of the petition,the High Court may be pleased to vacate} ir," int"rirn order dt^{11lOBl2O21 passed in WP No 18594of 2021}

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Counsel for the^{Petitioners:SRl.CH'V' KANAKA DURGA' ADV REP}

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SRI PUSHPINDER^KAUR

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Counsel for the^{Respondent No 1: SRI AKKAMESHWAR}

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Counsel forthe^{Respondent No 2: None Appeared}

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The Court made^{the following:ORDER}

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HONOURABLE SRI JUSTICE P. NAVEEN RAO

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HON'BLE SMT JUSTICE P SREE SUDHA

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W.P. No, 1 8594 of 2O2l

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ORDER: (eer Hon,ble Sri Justice p Naveen Rao)

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Heard Ms Ch.V. I(anaka Durga, learned counsel representing Ms Pushpinder Kaur,learned counsel for petitioner and Sri Akkam Eshwar learned counsel for first respondent.

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This rvrit petition is filed seeking following relief:

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*... .......ro issue an appropriate writ order or direction more particularly on€ in the nature of WRIT OF CURTIORARI. or any other appropriare Writ order'0, Oi.."ti6, .ufffi for'il. records pertaining to order dared og/lt/2020^'passed in oA No 021/01t28/2018 and"MA No 883/2019 on the file ofCentral Administrative iriUrnrt Uyae.uOaa Bench Hyd"ra;; ;r;-;;;h tlre same as illegal arbitrary and unconstitutional unA to parr......,,

¶39

The first respondent joined service as Telecommunication Inspector Grade III on 5.4.19g3. on 2.12.19gg notification was issued for the post of Assistant Signal and Telecommunication Engineer_ Grade-B cadre. On 16.3.2016 the Railway Board issued notification appointing certain Grade-B officers of signal and relecommunication Department to Grade-A /Junior scale of Indian Ra ways circle of IRSSE for the vacancy year 2o14-ls. F'irst respondent was considered for the panel year 2Ol4-lS but was not recommended by the Departmental Promotion committee on the ground that he was involved in criminar case registere d on 26.8.20 1 1 and was placed under suspension on 5.12.2O14. Therefore, promotion of first respondent was deferred.

¶40

Contending that he was illegally denied promotion while granting promorron to his juniors even though no disciprinary /criminal proceedings were pending against him, first respondent filed O.A. No. 1128 oI 2018 before the Central Administrative Tribunal, Hyderabad Bench. First respondent prayed to call for the records relating to notification dated 16.3.2016, declare non inclusion of the first respondent in the panel of 2or4-r5Ao Grade-A/ Junior scare of Indian

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Railways^{Service and includingthe junior as illegaland to consequently} declare that^{the applicantis entitledfor promotion on par with his junior'}

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On behalf^{of petitioners' it was pleaded beforethe Tribunal} that two crimes^{were registered against {irst respondentand based on} the crime^{registered on 30'1L2O14 he was placed undersuspension on} g.12.2014 and in the said crime^{charge sheetwas filed by the appellants} and the^{first respondent is facingtrial in CC No' 10 of 2017 on the file of} the XVI Metropolitan^{Magistrate,i(ukatpally at Miyapur' therefore'he is} not entitled^{for promotion' It is also further assertedthat since serious} allegations^{are made againstfirst respondent' he cannot be given} The Tribunal^{observed that crime} assignment in^{sensitive post'} registered ot^{26.8.2011 wasresolvedthrough Lok Adalath and that on} cc No. lo ol^{2ol7 on the file of XVI Metropolitan Magistrate, Kukatpally'} as tligh Court^{stayedconductingoi trial, it cannot be said that criminal} proceedings are^{pending.Thus,overrulir-rgthe objectionof the} petitioners and^{holding that no criminal case was pending against} respondent, the^{Tribunal<lirected granting ofpostinginany} non-sensitive^{post within the circle in Telecommunicationwing or any} other wings^{of the organizationon deputation'Holdingthat as thereis} no disciplinary /criminal^{proceedings pending' the principle laid downby} Hon'ble Supreme^{Court inJanakiraman's case isapplicable'} respondents^{were directed to adopt the procedurelaid down in DOPT} Memo dated^{14.g.1gg2and to grant promotionto the first respondent if} he is found otherwise^eligible'

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Admittedly on^{the date of consideration'first respondentwas} facing two criminal^{cases, though,subsequently, one crime wasclosed} by way of settlement^{through Lok Adalath' In the Crime No' 899 of 2Ol4} registered on 30.11.2014^{charge sheet was filed and first respondentis} facing trial in cc^{No. lo of 2077,though for the present trial in the} criminal proceedings^{are stayed on account of orders of this court dated}

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12.6.2019^{made in CriminalPetition No' 2650 of 2Ol9' Since the trial in} criminal^{proceedingswas stayed becauseof orders of this Court' it} cannot be^{said that criminal proceedingsare not pending' The trial is} only^{postponed becauseof the stay granted by this Court' Further'on} the^{groundof involvement in criminalcase in Crime No'899dated} 30.11.2014^{first respondent was placed undersuspension on 9'12'2014'}

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7 . The scope^{of consideration of an employee for promotion} when he is facing^{criminalprosecution or crime is registered was} considered^{by this Court in A'Jalender Reddy Vs' Stateof Telanganal'} On review^{of precedentdecisions' this Court notedas under:}

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The precedent^{decisionsby the Hon'ble Supreme Court} broadly?al^{witft'ifrtet clilferent contingencies andfor conveniencetheycan} be Dut into three^{caregones. i" ir]. n.i, category of cases, supremecourt} ["H:;;;;;;; ;';-.,"" '"iiir"""t oi u'' 'L'itov"'-ior promotion^canbe deferred.^{ln the second .ut"go.y" oiau""",supr"mecourt was considering} the situation^{whenentitlemeni'tirt"} "tpi"vtt for promotion^{can be deferred} even though^{a formal} "r-'^tg" "i"Ji'"""to't ' where^i"t"a' though^{In the charge third category sheet wasof} cases,^{SupremeCourtdealt t'iift} "it"utio"" issued there^{was inordrnatei"r"v- l"} i"ltiution /^{conclusionof disciplinary} ,i.-"t".di" ""0^{trt. .o"tt.tr'li'"i.,o"rarc adoptedby the courtswhenever} lucn issui^{arises for consideration}

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CATEGORY^{: II}

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Decisions^{in Ciuit APPedlNos'51'55 oi Tggo (as Pdrt ol} K.V.Janakiramant,^{n'c'xr'u'a;;:-Kt;tiKumari. n's'str,arrrrl--inl} ,.,,o tr',i" t't'gotv^{ln rhese decisions'a departurers} ;;;i;ffi;i;iltjir made from^{rhe aborn nroao oriniipie ltis necessaryandexpedientto} i"".t4..1n.".^{o*Gon" i" littlJ moredetail' at the costof repetition}

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56'inK'V.Janakiraman,appealsw_erepreferredagainstthertiuu""l^{andthe decision oI} decision^{of FullBench} "l^{ct";;i;;;;i5ti"il'e} A11 appeals^{were clubbedand} Central^{Administrutl'e ttiuut'ii';;;;"} considered^{There were tnt";':;;;;;^;;estions'involved in the batch of} cases before^{the Supreme cl"ti "-o""'"ithe questions considered was'} "whdt^{ts the ddteftom tniZi'it} "i"-Li ""ta^{tiat dtsctpltnary/crlminal} p';;;;;i;s'; "," pLndtns asainst^{an emptosee"'}

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Bench of 57'lnK'v.Janakiraman,afterconsidering.the-decisionofFull^{Central Administraii"ttlut-t'''^t on various- clauses of O M on} sealed cover^{procedLrre, s;;;t'-; -c;;;it?":'dt,t-t9,..:td"rspassedbv} Benches of^{CentralnArn"tlJtti'" Tribunal in individualcases ltis} aDoropriate^{to note the ob"tuiro"" tuO"Uy the SupremeCourt in Cl'il} ippeal^{Nos.57'55 oJ 1990'}

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58^{The factsof these appeals noted as in paragraphs36 and 37 of} proceedings^{as well as criminal} the iudqment^{wouldreveal rtt'i'i} "clptinar.y ;;: Leave^J..,?;;'' Travel^Concessron -;;^{;,1:':l,l-:ll* cla} f:[:Um:l':::;?1,':i:'::#:::15.07.1983.^They rhem.^{The emplovees were placedunder suspenstonon} The amount^of admitted^{guilt and pi"^d'd"':1'""::t;;;;} @";"p"nsion

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'^{zotr (+) elo s:a}

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Rs 1600/-^{was deposjted in October'1983 On depositingthe amount'} *as rerotea in^{November,i983 A lenientvieww'as takenand} ;.;;;;ir" prosecutions^{weredropped on 14 01} -1985'^{but without prejudice to} ".irii"tf ifr. J"pi.t-""tal^{proceedings.Formal charge sheel} .was^issuedon ii.tz.ig,gz .^{While so,the Delpartmental Promotion Committeemet in July'} isa; ih" opc^{resortedto sealed coverprocedure agarnst these empioyees.}

¶55

On challenge,^{Tribunaldirected promotionsto be Siven to} the 'f 98O. employees - !"i."-. on Court^{the basis of} found fault^{the with the recommendations said direction of the Supreme DPC in CourtJuiy'} mechanical^{view of the earlier decision of the Full Bench was} fr.fa-tnat erroneous."""i,

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60, Supreme^{Court observedas under:}

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"3g. In^{uieoof the o.'f,resdjd peculiar Jactsof the present} case, the^{DPC -whichmet in Julg 7986 was iustiJied in} resortlng to the^sealedcouer Procedure,^{notwithstdnding the} fact^{thitthe chdrge'sheetln the departmentalproceedings} 'wcls lssued in August/December, 7987' The Tribunal wa,s' therefore, not J;s$Jied^{inmechanicallAdpplglngthe} deciiion oJ the Fuu^{Bench to the} focts^{of the present case} and also ii-r directing^{all benefitsto be gilcn to the employees} including payment oi^{ar.enrs of saiary' Weareof the vie$' that} even if t-he iesults^{in the sealcdcover entitle the employees to} promotion from the date^{theirimmcdiatejuniorsrvere promoted} and they are,^{therefore,so promoted andgivennotionalbenefits of} seniority etc., the^{employeesin no caseshould bc given anl} u.reo."if salary.^{The denial of the benefit oI sa1ary"n'i11,of course'} be in addition to the^{penalty, il any,imposeclon the emplo!ees at} the end of the disciplinary^{proceedings We, therelore,allolv these} costs " appeals as above^{with no order as to}

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(emphasis suPPlied)

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At this stage, it is^{also appropriate to notc the observations of the} Supreme Court in tnion^{of India v. Tejinder Singh2' This appealu'as} preferred against the^{interimdirectionsissued by theCentral} iaministrative Tribunal. The^{Tribunaldirected thc Union of India to} consider and^promote the^{respondent irrespectivcol whether departmental} enquiry was contemplated^{or pendingSupretr1e Courtobserved that this} direction virtually amounted^{to pre- judging the wholeissue beforethe} Tribunal.

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Supreme Court^{observed as under:}

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"4. .......... we would^{like to record that the Tribunal hadno} jurisdiction whatever whiie dealing with a^{petition to quashthe} contemplated departmental^{enquiry againstthe respondent,to} make an interim order of^{this nature. We are also not satisfied} as to the cotrectness^{of the view expressed by the Tribunal} that a contemplated departmental^{inquiry or pendency of a} departmental^{proceedingcannot be a ground for withholding} consideration for Promotion^{or the promotionitself'we arc} not aware of any rule or^{principle to waffantsucha view'As} at present advised,^{we do not subscribeto the view} expre6sed by the Tribunal"'

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(emphasis suPPIied)

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ln H.C.Khurana,^{SupremeCourt held that adoptingsealed} cover procedure is valid^{if decisionto frame charges rvas taken and charges} were iramed earlier to meeting^{of DPC and it is not necessary that the} charge sheet should^be actually^{served, ln Kewal Kumar,SupremeCourt} neldlhat on recording of the^{FIR by the CBi, if a decisionis takert by} disciplinary authority to initiate^{disciplinaryaction is sufficient and no} formil chirge sheet is required^{to keep the result ofemployeeclaimfor} promotion in a sealed cover. In R.S.Sharma,^{Supreme Courtobservedthat} before employee could be actually^{promoted sanctionfor prosecutionwas} granted and thus though sealed cover^{procedure was not attracted whenit} was obserwed but no promotion cart^{be grantedon accountof subsequent}

'?(199t)^{4 scc129}

development. The view ol the Supreme Court in K,V.Janaklraman, echoed in H.C.Khurana, Kewal Kumar, R.S.Sharma and Tejinder Singh, u'ould show that in the facts of a given case it is permissibie to differ promotion even when no formal charge sheet is drawn / served in departmental proceedings or charge sheet is filed in a criminal case. It is also relevant to note that the decisions in K.V.Janakiraman and R,S.Sharma were bv benches composing of three Iearned judges.

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B. Since, first respondent is facing criminal proceedings, it is not in public interest to grant him promotion/ to assign him sensitive posting, more particularly when first respondent is part of the Telecommunication and Signal Service, which is highly sensitive wing of the Indian Railways.

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The order of the Tribunal dated 9.11.2020 is set aside and the writ petition is allowed. However, it is needless to mention that this Court is not expressing any opinion on the posting granted to lirst respondent on 28.5.2020 and continuing him in the said posting notwithstanding the dismissal of this writ petition. However, it is needless to observe that it is open to petitioners to transfer respondent anylvhere, in the exigencies of service. No costs. Miscellaneous applications, if any pending stand closed.

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SD/.P.PADMANABHA REDDY ASSISTANTtEGISTRAR i/TRUE COPY//

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To,

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SECTION OFFICER

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P' Rajasekhar, s/o. Late^p. suguna Rao, Aged about 55 years, occ- Divisionar Signal and,Tetelom_Engineer, South Centrjt Railway, nail trlilJiam Zth ii;;;secunderabad R/o. Rairway euarters No. 95s/4, soutn Lailaguia, Mettuguda Secunderabad.

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